Crossley v. Summit Lumber Co.

• Decision Date: 06 June 1916
• Docket Number: No. 14403.,14403.
• Parties: CROSSLEY v. SUMMIT LUMBER CO.
• Court: Missouri Court of Appeals

187 S.W. 113

CROSSLEY v. SUMMIT LUMBER CO.

No. 14403.

St. Louis Court of Appeals. Missouri.

June 6, 1916.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

"Not to be officially published."

Action by G. R. Crossley against the Summit Lumber Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Judson, Green & Henry, of St. Louis, for appellant. Eliot, Chaplin, Blayney & Bedal, of St. Louis, for respondent.

REYNOLDS, P. J.

This is an action to recover damages for nondelivery of a lot of long leaf yellow pine lumber, known in the trade as "export lumber," said to have been purchased by plaintiff of the defendant corporation, to be delivered at various dates, commencing in December, 1911, and running into February, 1912, at various named Florida coast points. There were five counts in the petition, one of the counts, however, the fourth, was dismissed by plaintiff at the close of the evidence in the case. The trial was before the court and a jury and at its conclusion the jury returned a verdict in the aggregate sum of $3,724.53. Judgment following, defendant has duly appealed.

It appears that the transaction on the part of defendant with plaintiff for the purchase and sale of this lumber was, so far as defendant was concerned, conducted mainly by one A. E. Silverthorne, who was a director and the secretary and general manager of the company, although the sales manager, Mr. Goss, who was under the immediate direction of the secretary, also appears to have written some of the letters. The defendant is a corporation organized and doing business under the laws of the state of Arkansas but its principal office and chief place of business is at St. Louis, where it was represented by the secretary, the president and other general officers and directors residing outside of this state. The several transactions here referred to were carried on by correspondence between plaintiff, who had his office in New York, and the Summit Lumber Company, generally from its St. Louis office. The Summit Lumber Company was engaged in the business of manufacturing and selling lumber. It had a mill at Randolph, La., and one at Columbus, Miss. A. K. Silverthorne was the president, W. E. Silverthorne, vice president, and A. E. Silverthorne, secretary and general manager, as before stated; and while the president and possibly other officers had been in St. Louis occasionally, A. E. Silverthorne was located there and in general charge of the business of the corporation. The beginning of the correspondence appears to have been in August, 1911, when Mr. Goss, the general sales manager, wrote plaintiff to the effect that the Summit Lumber Company was in a position to ship from "their mill" at Carrabelle, Fla., "export lumber," meaning long leaf yellow pine. The letter head upon which this was written, as far as it is here necessary to note, was as follows:

                          "Summit Lumber Company
                               "Incorporated
                "Manufacturers Soft Short Leaf Yellow Pine
                      "Soda Dipped and Steam Dried
                "Mills
                    "Summit Lumber Co., Randolph, La
                    "Interstate Lumber Co., Columbus, Miss
                    "Carrabelle Saw Mill Co., Carrabelle, Fla
                                         "St. Louis, Missouri
                "Quotations subject to change without notice
                    All contracts and agreements are contingent
                    upon strikes, accidents and other occurrences
                    beyond our control. All contracts
                    are subject to the approval of the
                    general office at St. Louis."
                

The Summit Lumber Company had no mill at Carrabelle, Fla., that mill being owned by a corporation in which A. E. Silverthorne was the principal and controlling stockholder.

Some of the correspondence was by telegraph and while many of the telegrams were signed in the name of the Summit Lumber Company, others were in the name of A. E. Silverthorne. The letters and telegrams from plaintiff to defendant were generally addressed to the Summit Lumber Company, sometimes to A. E. Silverthorne, at St. Louis, several of them, however, being addressed to A. E. Silverthorne, care Carrabelle Saw Mill Co., Carrabelle, Fla. One or more of the telegrams were addressed to A. E. Silverthorne at Cincinnati, Ohio, and others to him at other places.

While in a letter to A. E. Silverthorne, the then president, A. K. Silverthorne, cautioned A. E. Silverthorne against mixing up the business of the Summit Lumber Company with the Carrabelle Company, and in another forbid him to use the name of the Carrabelle Company on the letter heads, it does not appear that any notice of these, or limitation of the powers of A. E. Silverthorne, was given to plaintiff or the public and the same letter head seems to have been used throughout the correspondence.

Along the first of January, 1912, a change in the officers of the Summit Lumber Company was made and Mr. J. S. Blackwell became its president, A. E. Silverthorne being retired as an officer and director. On January 17th, 1912, Mr. Blackwell, as president, wrote to plaintiff on the letter head theretofore in use by the Summit Lumber Company and which we have set out, in reference to an order for the shipments of the export lumber covered by the order, to the effect that the Summit Lumber Company had nothing to do with this matter and requesting plaintiff to correspond directly with the Carrabelle Saw Mill Company or with Mr. A. E. Silverthorne, president of that company, adding that at the time of the writing of the letter Mr. A. E. Silverthorne was at Carrabelle, Fla., and would be there for several days. By another letter of January 22nd, 1912, Mr. Blackwell, as president of the Summit Lumber Company, and on the same letter head which had been in use in previous correspondence, wrote to plaintiff asking for a copy of any acceptance by the Summit Lumber Company of an order designated as "Billa," this being the code term designating a particular order for export lumber. Mr. Blackwell further wrote in this letter that the Summit Lumber Company had nothing whatever to do with Carrabelle Saw Mill Company or its orders and that since January 10th (1912), the Summit Lumber Company had nothing whatever to do with Mr. A. E. Silverthorne; that it was impossible for anyone to think that the Summit Lumber Company could fill this order from their Randolph, La., saw mill, and that they had nothing whatever in the office to show that the order had ever been accepted. He further writes:

"Whatever business you have with Mr. A. E. Silverthorne of the Carrabelle Saw Mill Company does not concern the Summit Lumber Company in the least and we do not see how you can hold the Summit Lumber Company for this order and we refuse to have anything to do with the order in any way, shape, or form."

This letter was written after all the orders for long leaf yellow pine lumber had been sent to the Summit Company, and was signed by Mr. Blackwell, as president and general manager. Following other correspondence in which the new management of the Summit Lumber Company repudiated all the transactions of A. E. Silverthorne in connection with these orders of the plaintiff, this action was commenced. None of the lumber which plaintiff claimed had been contracted for was ever delivered, and it appears that the only lumber of the kind wanted by plaintiff, that is long leaf yellow pine, which was manufactured by any of the mills named on the letter head of the Summmit Lumber Company, was manufactured by the Carrabelle Saw Mill Company, at Carrabelle, Fla.

There was evidence in the case on the part of defendant, tending to show that plaintiff knew during the time he was endeavoring to contract for this export lumber, and while corresponding and giving orders for this lumber, that the Carrabelle Saw Mill Company, while a corporation, was the individual property of A. E. Silverthorne, he owning all or the controlling stock in it, the Summit Lumber Company and its officers, other than A. E. Silverthorne, having no connection with it. While plaintiff admitted that he knew this, he also testified that he understood that A. E. Silverthorne also owned the controlling interest in the Summit Lumber Company.

In the first instruction given at the instance of plaintiff the court told the jury, as a matter of law, that there was a contract of purchase and sale shown by the letters and correspondence between the parties. This is assigned as error.

While the legal effect of the correspondence is always a question of law for the court (Wilbur Stock Food Co. v. Bridges, 160 Mo. App. 122, loc. cit. 131, 141 S. W. 714, and cases there cited), the question whether defendant had accepted the contract as proposed may become a question of fact for the jury, and the burden of showing that the proposal as made was accepted as made, would be on plaintiff (Robertson v. Tapley, 48 Mo. App. 239, loc. cit. 242). But in the case at bar there was no room for submission of any such issue to the jury. The correspondence discloses an unequivocal acceptance — a meeting of the minds of the contracting parties. That was not so in the Robertson Case, supra, and hence in that case it was a question for the jury. Here the trial court properly instructed on the correspondence, that there was a contract. 9 Cyc. p. 776, subsec. 2.

The appellant asked the following instruction:

"The court instructs you that if you believe from the evidence that plaintiff, Crossley, knew in...